Alienation of affection and criminal conversation are claims for monetary damages filed against someone for acts related to your marriage. Alienation of affection is a claim based on someone willfully doing something to alienate or destroy the love and affection your spouse had for you. A criminal conversation is a claim based on someone having sexual relations with your spouse.
What is Alienation of Affection?
Alienation of Affection is a lawsuit brought by a married (or formerly married) person, who alleges that the actions of a third party deprived the married (or formerly married) person of the love and affection of his or her spouse.
Alienation of Affection is a common law tort. In other words, it is a wrongful act for which the common law (law established by judicial decisions) provides a civil remedy. North Carolina is one of only six states in the United States that still recognizes a claim for Alienation of Affection.
Legal Elements of Alienation of Affections
In North Carolina, you may sue a person who has caused the loss of the love and affection of your spouse. To prove this case in court, you must satisfy the following elements of the case:
- You and your spouse were in a good and loving marriage and genuine love and affection existed between the two of you.
- The love and affection were alienated and destroyed by a third party’s acts.
- The wrongful and malicious acts of the third party produced the alienation of affection.
North Carolina case law has defined such terms as “malicious” and “good and loving.” The terms are not as clear or understandable as they would appear at first read. For example, the requirement for a good and loving marriage is not a requirement for a perfect marriage.
The Alienation of Affections Claim
The claim for alienation of affection is typically filed in the superior court division in North Carolina. In the past, I have also filed them in the district court where I wanted to try to fast-track the process (typically district courts are easier to get hearing dates in). The complaint for alienation of affection sets out the relevant facts and is served on the defendant. Once service is made by a sheriff’s deputy or certified mail, it is typical to demand documents and information from the defendant related to the case, such as emails, phone records, expense receipts, etc.
Do not be surprised if the defendant asks for documents and information to defend the claim. The defenses to alienation of affections could be based on a denial that there was a loving relationship at home and/or that the defendant did anything wrong.
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Scott Allen is an attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement including alienation of affections claims and defense. He can be reached at 919.863.4183.